PEOPLE v. FOREMAN (2024)

Judgment, Supreme Court, New York County (Stephen Statsinger, J., at diversion hearing;  Felicia Mennin, J., at plea and sentencing), rendered December 11, 2017, convicting defendant, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to an aggregate term of two years, to run concurrently with the resentence imposed for violation of probation under SCI 377/16, unanimously affirmed.

Defendant's challenges to the court's denial of his application to participate in the judicial diversion program are unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find that the court providently exercised its discretion in denying the application (see People v. Smith, 139 A.D.3d 131, 134, 30 N.Y.S.3d 19 [1st Dept. 2016], lv denied 28 N.Y.3d 1031, 45 N.Y.S.3d 382, 68 N.E.3d 111 [2016]).  The court's determination was supported by defendant's extensive criminal history, his violations of probation, and the conclusion of a case manager from the judicial diversion program that defendant would not be a suitable candidate for the program (see People v. Young, 184 A.D.3d 443, 444, 126 N.Y.S.3d 450 [1st Dept. 2020], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 392, 152 N.E.3d 1193 [2020];  see also CPL 216.05[3][b]).  There is no basis for disturbing that determination because the record does not reflect that granting defendant's request for judicial diversion would have been appropriate (People v. O'Keefe, 112 A.D.3d 524, 525, 976 N.Y.S.2d 663 [1st Dept. 2013], lv denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014]).